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REPORT
Nš 19/92
I.
BACKGROUND INFORMATION:
1. On
April 15th, 1991, a complaint was received by the Inter-American
Commission on Human Rights.
2. The
complaint alleged that between 1970 and 1978 bogus criminal warrants
were issued by Judge Fred G. DiBona, against members of the Move
Organization. (It is
alleged that "Move" is a revolutionary organization,
motivated by the teachings of founder, John Africa, whose purpose is
to confront and expose injustice wherever it exists.)
This resulted in the commission of several acts of brutality by
the police, and the government on various members of the Move
Organization, including women, pregnant women, and children in order
to eliminate them. These
brutal acts have culminated in the death of a number of Move babies.
II.
ALLEGED FACTS:
1. Prior
to May 13th, 1985, the Mayor of Philadelphia stated on public radio
that he wanted a "permanent end" to "Move."
After months of planning by the public officials of
Philadelphia, the State of Pennsylvania, the United States Justice
Department, FBI agents, ATF agents, the United States Attorney for the
Eastern District, and members of the police department,
warrants were issued on May 11th, 1985 against several members
of the Move Organization, for non confrontational incidents which
occurred on April 29th, 1985.
2. On
May 12th, 1985, members of the police force began evacuating the
entire 6200 block of Osage Avenue, home and headquarters of the Move
Organization, on the pretext of serving four of these warrants, and in
the early hours of May 13th, 1985, over a hundred policemen surrounded
the residence of the Move members.
Thirteen Move members, including six children were at home.
In the first ninety minutes, the police started attacking their
home with tear gas, deluge hoses, stun grenades, ten thousand rounds
of bullets, and explosives. Police
then dropped a C-4 bomb, which was supplied by the Federal Government
on the roof of their home. The
Bomb ignited a fire, however the police and fire officials made a
conscious decision not to put the fire out.
3. The
Move Members repeatedly "hollered" that they were bringing
the children out, and Ms. Africa attempted to bring some children out
of their home, but they were met with a barrage of police gunfire and
driven back into the fire.
Finally, Ms. Africa and Birdie Africa made it through the fire
and police gunfire. Ms.
Africa was immediately arrested by the police, and Birdie Africa was
also taken into custody. They
were severely burned, and were hospitalized.
Ms. Africa later learned that six adults, five children, their
dogs, and cats were dead.
4. Ms.
Africa was charged and convicted of conspiracy to riot, and riot, and
was sentenced to sixteen months to seven years in prison.
However, none of the public officials
were prosecuted or held accountable for the death of the Move
members. Two grand juries, both state and federal failed to indict
them, and the District of Philadelphia and United States Attorney
failed to prosecute them.
III. THE
APPLICANT'S COMPLAINT REQUESTS THAT:
1. The
public officials be held accountable for the conspiratorial murder of
the eleven Move members, including five children who were deliberately
murdered on May 13th, 1985, and that the Commission do what is just,
and right. The public officials that the complaint alleges committed
the violations are Wilson Goode, Mayor of Philadelphia, Gregore Sambor,
Police Commissioner, Wm. Richmond, Fire Commissioner, former Managing
Director, Gen. Leo Brooks, Lt.
Frank Powell of the Philadelphia Police Department, Harvey Clark,
Maida Odom, and Bill Steinmetz.
IV. IN
THIS CONNECTION THE APPLICANT ALLEGES VIOLATIONS OF:
1. Articles
I-V, VII, VIII, IX, XVII, XVIII, XXI, XXII, XXV, XXVI of the American
Declaration of the Rights and Duties of Man.
2. Articles
4, 7, 8, 12, 13, 16, 19, 24 of the American Convention of Human
Rights.
V. PROCEEDINGS
BEFORE THE COMMISSION
1. Upon
receipt of the complaint on April 15th, 1991, and up to August 4th,
1992, the Commission acting through its Secretariat complied with all
the procedural requirements of Articles 30 to 35 of its Regulations.
In this regard the Commission communicated with the petitioner
and the United States Government, studied, considered and examined all
information submitted by the parties.
2. The
Commission transmitted seven notes to, and received five notes from
the United States Government. Two
of the Government's notes addressed the issues presented in the
Complaint. They contained
arguments stating that the petition is inadmissible, because the
petitioner had failed to allege invocation and exhaustion of domestic
remedies, and that domestic remedies had not been exhausted.
3. The
Commission transmitted five notes to, and received five notes from the
petitioner, and several enclosures addressing the issues raised in the
complaint. In one of the
notes the petitioner amended the petition to allege that all criminal
domestic remedies were invoked and were now exhausted.
VI. SUBMISSIONS
OF THE PARTIES
A. The
Respondent Government's First Submission (contained in note
received December 3rd, 1991) stated that:
The United States maintains that the complaint should be found
inadmissible by the Commission for the following reasons:
The Petition Is Inadmissible Because Petitioner Has Failed
To Invoke Exhaustion Of Domestic Remedies
1. The
petitioner has failed to invoke exhaustion of domestic remedies, and
has failed to supply information in her petition concerning whether
remedies under domestic law have been exhausted.
Thus the petition is inadmissible in accordance with Articles
32 and 37 of the Commission's Regulations.
The Petition Is Inadmissible Because Petitioner Has Failed
To Exhaust Domestic Legal Remedies Available To Her
2. The
petitioner has not in fact exhausted domestic legal remedies.
Petitioner is now (and was at the time she submitted her
communication to the Commission) engaged in civil litigation, Civil
Action Nš 87-2768, brought in 1987, in the United States District
Court for the Eastern District of Pennsylvania.
3. This
litigation has been brought against the City of Philadelphia, and the
following present and former city officials and employees: W. Wilson
Goode, Mayor; Leo Brooks, former Managing Director; Gregore Sambor,
former Police Commissioner; Williams Richmond, former Fire
Commissioner; Edward Powell, Philadelphia Police Department; and
Albert Revel, Michael Tursi, William Klein, and Deputy City Solicitor,
City of Philadelphia. All of these individuals are listed in the
petition as having committed the alleged violations.
4. The
allegations of the complaint arose out of the same matter, the
confrontation between the Move organization and the City of
Philadelphia on May 13th, 1985, and form the substance of the
complaint brought before the Commission.
The causes of action raised in the complaint are violations of
the Civil Rights Act of 1964, 42 U.S.C. SS 1983 and 1985, as well as
various pending state claims such as negligence, against individuals
she identifies in her communication.
5. Petitioner
cannot claim she has been or is being denied due process of law or
access to domestic remedies in order to invoke the jurisdiction of the
Commission. (Article
37(2)(a)(b) of the Commission's Regulations.
The discovery phase of the litigation is still proceeding,
although the deadline for new discovery requests has expired.
6. In
addition, this action is proceeding through United States courts
without unwarranted delay. The
Court has set a pre-trial briefing schedule which requires defendants
to file all summary judgment motions no later than December 31, 1992,
and plaintiff to respond no later than January 1992.
7. The
requirement for exhaustion is recognized and well established in the
Commission's practice. (See,
e.g., Wilfong v. United States (Case 7967) (June 30, 1983); Soto
v. United States (Case 1773) (October, 1974).) Thus, the petition
is inadmissible under the requirements of Article 37 of the
Commission's regulations, and under the provisions of Article 20 of
the Statute of the Commission.
8. The
petition is incomplete, and therefore inadmissible, because the
petitioner has failed to supply information concerning whether she has
exhausted domestic remedies. Article
32(d) of the Commission's Regulations requires that petitions include
"information on whether the remedies under domestic law have been
exhausted or whether it has been impossible to do so".
9. Pursuant
to Article 41(a) of the Commission's Regulations, the Commission must
declare a petition inadmissible when "any of the requirements set
forth in Article 32 of these Regulations has not been met"
[emphasis added]. Since
petitioner has failed to exhaust fully judicial remedies available in
the United States, the petition clearly fails to satisfy the
exhaustion requirement, and this communication does not address in
detail the interpretations of law and factual assertions presented in
the petition. B. The Petitioner's First Submission (received February 10th, 1992) stated that:
The Petitioner Should Be Allowed To Amend Her Complaint To
Allege Exhaustion Issues.
1. Petitioner
maintains that she filed the instant suit pro se, and retained
counsel several months after filing the instant suit.
Domestic law clearly holds that pro se pleading are to
be judged by a less stringent standard than those prepared by
attorneys. Haines v.
Kerner, 404 U.S. 519. The
policy and practice of the Commission has also been to allow some
leniency in this regard to pro se petitioners.
2. Furthermore,
she has not had any formal legal training, particularly in the highly
specialized area of international human rights law.
She also lacked ready access to international legal materials,
due to her incarceration, which would have given her additional
guidance on the specific requirements in drafting the complaint.
Thus, she should not be held to the same high standard of
pleading that the government asserts she should be held to.
3. Finally,
respondent will not be prejudiced by petitioner's inclusion of
exhaustion allegations at this stage.
In fact, respondents have already anticipated petitioner's
arguments and have provided their response to them.
Petitioner should be allowed to now allege and argue the issue
of exhaustion of domestic remedies.
Petitioner Has Exhausted All Her Criminal Remedies
1. It
is uncontested by the respondent that petitioner was found guilty of
riot and conspiracy on February 9, 1986.
It is also uncontested that on February 18th, 1986 the
petitioner filed post verdict motions which were denied on April 14,
1986. The parties are
also in agreement on the following:
2. Petitioner
motioned the court on April 22, 1986 for reconsideration of her
sentence. This was
denied. Petitioner
appealed her conviction to the Court of Appeals on April 25, 1986.
The appellate court denied petitioner's appeal on May 11, 1987.
Petitioner then filed her petition for Allowance Of Appeal to
the Supreme Court on October 9, 1987.
This too was denied on February 19, 1988.
3. Thus,
petitioner has exhausted all her domestic criminal remedies.
Domestic law provides that it is only through the above steps
that a person convicted of a crime in the United States of America can
obtain relief from their conviction and thus obtain release from
prison.
4.
Petitioner requests, that she and the other Move members who
are currently unjustly incarcerated be released. (Petitioner was
released from prison on May 13, 1992, argument as to herself moot.
Petitioner also argued that other Move members who were
incarcerated have also exhausted their domestic remedies, and cited
their names, which are omitted because they all have arrest dates
prior to May 13th, 1985.)
Petitioner Has Exhausted All Avenues of Remedy Which Would
Allow For Criminal Prosecution Of The Respondents
1. Petitioner
has exhausted all avenues that would allow for criminal prosecution of
the respondents, and that as part of her prayer for relief, she is
requesting that the respondents be held criminally liable for their
actions. With regard to
the May 13, 1985 events, the county investigating grand jury and the
federal grand jury failed to institute any criminal charges against
any of the respondents.
2. The
Civil Rights Division of the Department of Justice and the Federal
Bureau of Investigation also erroneously concluded that criminal
charges were not warranted against the respondents.
Furthermore, the Philadelphia Special Investigating Commission
was without authority to institute charges against anyone.
3. With
regard to the repeated incidents of police brutality against pregnant
Move women, no charges were ever even considered against the police.
Nor were charges brought for the killing of baby Life Africa.
Petitioner's Civil Remedies Are Inadequate
To Provide Relief
1. The
cited Civil Action Nš 87-2678 relates only to the violations of the
petitioners' domestically protected civil rights perpetrated by the
named defendants in relation to the events surrounding the May 13,
1985 attack on the Move house.
2. It
does not relate to other events alleged as violations of international
human rights standards which are cited in petitioner's complaint
before the Commission. Nor
does her civil complaint relate to the violations of other Move
members' civil rights. Thus,
other Move members and the petitioner are outside their statutory
timeframe to bring civil rights actions on their own behalf.
3. Furthermore,
if she prevails in her civil action, her only form of relief is
monetary compensation for the injury done to her. No criminal
penalties will be imposed on the named defendants in that action for
their violation of the law.
Petitioner Cannot Obtain Adequate Due Process
In Any Domestic Action
1. The
Commission has held in the past that where high level authorities in
the government have made statements exonerating those involved, there
is a strong indication that a negative attitude exists as regards
inflicting the punishment that those responsible for an offense
deserve. Such a negative
attitude is strong indicia that the victim has been denied due process
as it relates to exhaustion of his or her domestic remedies.
Art. 37 (2)(b) and Resolution Nš O1a/88, Case 9755, Chile,
September 12, 1988.
2. Such
indicia exist in the case at bar.
Judges, district attorneys, the Mayor and the Governor have all
shown through their actions and their statements that they could not
render unbiased decisions when it came to Move.
Furthermore, those responsible and potentially liable are high
ranking government officials who ultimately controlled the
investigating bodies and had authority
to institute criminal charges.
C. The
Respondent Government's Second Submission (received
July 30th, 1992) stated that:
The Petitioner Has Failed To Exhaust Domestic Remedies
As Required by Article
37
1. The
respondent government reiterated its first response, and maintained
that petitioner's complaint should be dismissed under Article 37 of
the Commission's Regulations because she has not exhausted available
remedies under domestic law. The
incidents which form the basis of petitioner's complaint are the
subject of ongoing litigation, Civil Action Nš 87-2678 in the
domestic courts of the United States.
2. Petitioner
is seeking monetary damages for, inter alia, alleged violations
of her civil rights under the Civil Rights Act of 1964, 42 U.S.C. SS
1983 and 1985, in the federal courts, and negligence on the part of
the City of Philadelphia, and several present, and former city
officials.
3. Several
procedural motions are presently pending before the presiding federal
magistrate, who is expected to set a trial date in mid-September of
this year. At the
conclusion of the current litigation, petitioner may still have
further remedies available to her under domestic law, as she may be
able to appeal an unfavorable district court decision to the United
States Court of Appeals for the Third Circuit.
4. Article
37 of the Commission's Regulations does not distinguish in any way
between remedies afforded under the criminal and civil laws of a
nation. The regulation
plainly requires the exhaustion of all domestic remedies, not merely
those selected remedies which petitioner claims she would prefer, and
which she has unilaterally deemed "adequate."
5. The
United States notes that none of the legal instruments upon which
petitioner relies--neither the American Convention on Human Rights,
nor the American Declaration of the Rights and Duties of Man, nor the
United States Constitution--confer upon petitioner a "right"
to have the Government of the United States file criminal charges
against those persons whom she has accused. The fact that petitioner
evidently favors this particular "remedy" is not relevant to
the exhaustion requirement.
6. The
United States vigorously rejects the contention that the various civil
remedies which petitioner is entitled to pursue under United States
law are inadequate to provide relief for any of her claims which are
ultimately proven to be meritorious.
The Exceptions To The Exhaustion Requirement Contained In
Article 37(2) Are Inapplicable to Petitioner's Claim 1. Article 37(2)(a) provides that the exhaustion requirement will not apply when "domestic legislation of the state concerned does not afford due process of law for protection of the right or rights allegedly violated." (Government's argument omitted, because it is undisputed by both sides that investigations have been conducted by the United States Civil Rights Division of the Department of Justice, the Federal Bureau of Investigation, the county grand jury, and the federal grand jury and no indictments were returned against any of the public officials involved.)
2. Because
petitioner disagrees with the results of all four of these
investigations does not indicate that domestic legislation is inadequate
to afford her due process of law for protection of a "right"
which does not exist.
3. The
exhaustion requirement is clearly applicable because no unwarranted
delay has elapsed in the rendering of the final judgment in the
petitioner's pending civil action against the City of Philadelphia.
4. The
provisions of Article 37(2)(c) are thus inapplicable, and this
communication does not address in detail the interpretations of law and
factual assertions presented in the petition. THE
LAW:
Three threshold issues are raised by the petitioner and the
respondent Government:
1. (a) Should the provision of Article 37(1) of the Commission's
Regulations which provide that, "the remedies under domestic
jurisdiction must have been invoked and exhausted in accordance with the
general principles of international law," be given a literal
interpretation to include both criminal and civil remedies?
(b) Or should it be construed to imply, that in this case, the
requirement of "exhaustion of remedies under domestic
jurisdiction" only requires the exhaustion of criminal remedies under
domestic jurisdiction?
(c) Have
domestic remedies been exhausted in this case, or do any of the
exceptions set forth in Article 37 of the Regulations excuse the
applicants from exhausting domestic remedies?
2. Whether
the alleged facts as presented by the parties constitute prima facie
violations of human rights as recognized in the American Declaration by
a Member State of the OAS?
3. If
so, can the Commission:
(a) Intra vires hold the respondent Government
and other respondents criminally liable for the alleged violations? or
(b) Is it ultra
vires the powers of the Commission? ANALYSIS:
(a) ARTICLE
37(1) OF THE COMMISSION'S REGULATIONS
SHOULD BE GIVEN A LITERAL INTERPRETATION TO
INCLUDE BOTH CIVIL AND CRIMINAL REMEDIES
1. The
petitioner has submitted arguments contending that all her domestic
remedies under criminal law have been exhausted.
The Respondent United States Government submitted two submissions
which contained arguments that the petitioner's complaint should
be dismissed because all the petitioner's domestic remedies have not
been exhausted.
2. The
Government argued that the petitioner was and is currently involved in
ongoing litigation which is the subject matter of issues raised in the
complaint before the Commission. In
that litigation the petitioner filed civil rights and negligence actions
against the various officials, and persons she has named in the
complaint as the alleged violators of her human rights.
3. Article
37(1) of the Commission's Regulations provide "For a petition to be
admitted by the Commission, the remedies under domestic jurisdiction
must have been invoked and exhausted in accordance with the general
principles of international law."
4. Upon
reading Article 37(1) of the Commission's Regulations it appears that
the intent of the framers of the article meant it to be read literally
to mean that "remedies" available under domestic jurisdiction
should have been invoked and exhausted.
5. So
that if the domestic jurisdiction in a state provided only criminal
remedies, then criminal remedies should be invoked and exhausted.
If however, a state provided only civil remedies then the civil
remedies in that state should be invoked and exhausted.
But a state providing both civil and criminal remedies, for the
same alleged violation, then the petitioner would be required to invoke
and exhaust both type of remedies.
6. The
framers made no distinction when drafting the section between civil and
criminal remedies, because if they had decided that the section was
intended to refer to only "criminal" and not civil or other
remedies they would have delineated the same.
7. Some
assistance is found in an Advisory Opinion OC-11/90 of August 10, 1990,
of the Inter-American Court Of Human Rights as to the meaning of how the
term "remedies" should be interpreted under Article 46(1)(2)
of the American Convention on Human Rights.
Article 46(1)(a) and 46(2)(a)(b)(c) recite the same matters
contained in Article 37(1)(2) of the Commission's Regulations, as to the
exhaustion of domestic remedies.
8.
Although the opinion did not specifically deal with the meaning
of what type of remedies Section 37(1) of the Commission's Regulations
refer to, the Court however, examined the issue of exhaustion of
remedies, with regard to " a person's indigency, or an inability to
obtain legal representation because of a generalized fear among the
legal community to take such cases."
9. The
Court in addressing those issues considered Article 1, obligation to
respect rights, Article 24, right to equal protection, Article 8, right
to a fair trial, of the American Convention on Human Rights.
The Court construed remedies as rights of persons
guaranteed by the Convention, whether of a criminal, civil, labor,
fiscal, or any other nature.
10. The Court
stated on page 9, paragraph 27, that, "in cases which the accused
is forced to defend himself because he cannot afford legal counsel,
"a violation of Article 8 of the Convention could be said to exist
if it can be proved that the lack of legal counsel affected the right to
a fair hearing which he is entitled under that article."
11. In paragraph
28, the Court stated,
"that for cases which concern the determination of a person's
"rights and obligations of a civil, labor, fiscal, or any other
nature," Article 8 does not specify any," minimum
guarantees" similar to those provided in Article 8(2) for criminal
proceedings. It does,
however, provide for "due guarantees," consequently, the
individual here also has the right to the fair hearing provided for in
criminal cases."
12. Thus, since
the petitioner has acquired "rights" (as per alleged facts
contained in petition) because of the alleged violations of her human
rights under the American Declaration of the Rights and Duties of Man,
then she has also acquired "remedies," whether they be of a
civil or criminal nature, or both.
Having acquired these remedies she must invoke and exhaust them,
which she has done by appealing her criminal conviction to the highest
appellate court, and commencing civil proceedings in federal court,
where she is currently pursuing damages for violations of her civil
rights, negligence, and other claims.
(b) DOMESTIC
REMEDIES HAVE BEEN INVOKED BUT HAVE NOT BEEN EXHAUSTED BY THE PETITIONER
THEREFORE ARTICLE 37 PARAGRAPHS (2) & (3) ARE INAPPLICABLE
1. Notwithstanding
that this petition is to be construed under the American Declaration of
the Rights and Duties of Man, because the petition is brought against
the United States, who has signed the American Convention on Human
Rights but has not ratified the same, the Court's assistance and
guidance in the above advisory opinion could be utilized in interpreting
Article 37(1) of the Commission's Regulations, with regard to the
meaning of "domestic remedies" found in the section.
2. Therefore,
as discussed above the remedies acquired, whether they be of a criminal,
civil, labor, fiscal, or other nature, as per the Court's advisory
opinion, must have been invoked and exhausted as provided by Article
37(1) of the Commission's Regulations.
However, because the petitioner has invoked and is currently
pursuing those remedies in the courts, her remedies under domestic
jurisdiction have not been exhausted, therefore paragraphs 2, and 3, of
Article 37 are inapplicable.
3. Furthermore,
the petitioner is seeking to rely on the exhaustion of her criminal
remedies, which were finalized on February 18th, 1988, by the denial of
her appeal by the appellate court.
The Commission received her petition on April 15th, 1991.
Thus if the Commission were to consider the exhaustion of her
criminal remedies in a vacuum, her petition to the Commission was
untimely filed as per Article 38(1)(2), and inadmissible.
4. Article
38(1) provides that the Commission,
"shall refrain from taking up those petitions that are
lodged after the six-month period following the date on which the party
whose rights have allegedly been violated has been notified of the final
ruling in cases where the remedies under domestic law have been
exhausted."
5. Article
38(2) provides an exception, but states that "the deadline for the
presentation of a petition to the Commission shall be within a
reasonable period of time, in the Commission's judgment, as from the
date on which the alleged violation of rights has occurred, considering
the circumstances of each specific case."
6. Thus
having concluded that Article 37(1) requires both criminal and civil
remedies must have been invoked and exhausted under the domestic
jurisdiction, the petition was timely filed.
7. However,
having found above that the petition is inadmissible at this time,
because domestic remedies have been invoked but not exhausted, the
Commission need not reach the two other issues raised with regard to the
merits of the case.
THEREFORE
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, CONCLUDES: 1. That the petition is inadmissible because the petitioner has not exhausted domestic remedies. |
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